GOODRICH, P.J.:
The plaintiff, on an evening of January, 1898, was driving a "reach" wagon on the easterly or north-bound track of the defendant's road on Rogers avenue, in the borough of Brooklyn, when he heard the bell of a car coming up behind him, and began to turn off the east track on to the west track, and while in this act the inside of the rear right-hand wheel of his wagon was struck by the car, whereby the wagon was upset and the plaintiff thrown off and injured. There was much strife at the trial as to whether the plaintiff was driving north on the north or the south-bound track, and whether he turned off the south-bound track on to the north-bound track, but, as this was a disputed question, we must assume the plaintiff's contention to be true, and this, it may be said, is in accord with some of the evidence of the defendant, and is confirmed by the fact that the wagon was struck on the inside of the rear right-hand wheel.
The defendant moved to dismiss the complaint on the ground that "the plaintiff has failed to establish the cause of action set forth in his complaint." This was not very definite, but as the complaint necessarily alleged that the plaintiff was not careless or negligent, we assume that this ground was within the defendant's motion.
This court is committed to the doctrine that while it is not negligence, as matter of law, for one driving a wagon at night in the track of a surface railroad to fail to look backward to see an approaching car, yet he may not rely wholly upon the supposition that the railroad's servants will see him in time to give warning, and that he must be on the alert to discover in some manner and by some exercise of his senses the approach of a car from the rear. ( Devine v. Brooklyn Heights R.R. Co., 34 App. Div. 248; Johnson v. Brooklyn Heights R.R. Co., Id. 271; Quinn v. Brooklyn City R.R. Co., post, p. ____.)
The plaintiff's evidence on this subject is briefly as follows: He was seated over the rear axle, with a boy beside him, who was not examined as a witness, but whose absence was fully accounted for. The plaintiff said: "I come along Rogers avenue and I heard a bell, and I looked back and I turned out of the track, and while I was turning out I got hit and I flew off the wagon; that is all I remember. * * * At the time I was hit I had the horse over in the other track already, and the front wheels there in the other track on the left hand on which the cars go out. When I was struck the forward part of the truck, the front wheels, were on the other track the left-hand track, with the horse. * * * When I heard the bell behind me I was about twenty feet in front, or twenty-five feet. I didn't hear any bell until then." He also said that his horse was going at a slow walk and that he turned out when he heard the bell.
Bewick, one of the plaintiff's witnesses, testified that "this car was at least three blocks away from him, when he commenced to ring the bell, and coming at a terrible speed, and the car was about Lefferts Place when the man commenced to turn out." Lefferts place is three blocks distant from Malbone street, the place of the accident.
The plaintiff had turned out of the track once before for an overtaking car, thus displaying some degree of attention, and the jury might believe the testimony of Bewick that the plaintiff began to turn out of the track when the bell was rung at Lefferts place, although the plaintiff himself testified that he did not begin to turn till he heard the bell when the car was twenty or twenty-five feet away, for it is in evidence that the plaintiff's injuries have in some, though perhaps slight, degree impaired his mental ability.
Under this state of the evidence the court properly submitted to the jury the question of the plaintiff's freedom from contributory negligence, and we may not disturb the verdict.
Judgment and order unanimously affirmed, with costs.